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Right of an accused to appear as a witness

38. In this respect, the Appeals Chamber agrees that, under the Tribunal’s law, the Prosecution may not summon an accused as a witness in his own case, due to the special protection he enjoys.[1] The Appeals Chamber however notes that the Prosecution is not attempting to call Prlić as a witness in this trial. A request to admit a transcript of a suspect’s questioning into the trial record cannot be equated with a request to add the person in question to the Prosecution’s witness list. […] On the other hand, written evidence such as the December 2001 Transcript, although strictly speaking evidence stemming from the declarations of an individual, is not the “testimony” of that person.

27. In the Galić Appeal Judgement, the Appeals Chamber confirmed that an accused has the right to appear as a witness in his defence.[1] The Appeals Chamber equally determined that this right does not prevent a Trial Chamber from exercising its authority to control the conduct of a trial by imposing conditions on the right to appear as a witness, provided these conditions do not unreasonably interfere with the right to testify.[2]

28. In the present case, the only condition imposed on Blagojević’s right to testify was that his assigned counsel would be responsible for examining him. The Appeals Chamber notes that Blagojević stated that he would answer questions put to him by the parties that “incorporate[ed] the examination-in-chief and cross-examination”[3] and that he needed assistance in preparing for his testimony.[4] In these circumstances, it was not unreasonable for the Trial Chamber to require Blagojević to be examined by his assigned counsel if he chose to testify, notwithstanding his persistent refusal to communicate with Mr. Karnavas. The Appeals Chamber is of the view that the Trial Chamber made extensive efforts to ensure that Blagojević was advised of the consequences of testifying and was given the opportunity to testify or otherwise be heard before the end of the case.[5] It was Blagojević’s unjustified and unilateral refusal to communicate with his assigned counsel that resulted in his failure to testify, rather than any action or unjustified restriction imposed on his right by the Trial Chamber.

29. Therefore, the Appeals Chamber is not satisfied that the conditions placed by the Trial Chamber on Blagojević’s right to testify on his own behalf, namely that his counsel conduct the examination, so unreasonably interfered with his right to testify that his right to a fair trial was infringed.

[5] The Trial Chamber also offered Blagojević the opportunity to make a sworn or unsworn statement under the control of the Trial Chamber. Blagojević explained to the Trial Chamber that he did not want to pursue this option because the Trial Chamber indicated that it might not carry the same weight as testimony given under oath and subject to cross-examination and further inquiry from the Trial Chamber. See Blagojević and Jokić, Decision on Vidoje Blagojević’s Oral Request [Prosecutor v. Vidoje Blagojevic and Dragan Jokic, Case No. IT-02-60-A, Decision on Vidoje Blagojevic's Oral Request, 30 July 2004], pp. 7, 10. However, the Appeals Chamber observes that, in explaining that the statement might carry less weight, the Trial Chamber referred specifically to the situation where a statement would be unsworn. In addition, in making its observation, the Trial Chamber did not state that it would definitively accord such a statement less weight, in particular if it were sworn. Blagojević has made no submissions suggesting that this would have been an unreasonable alternative to being examined by his counsel or that it would fail to satisfy his right to appear as a witness in his defence.